Back to Nature, 2

What better way to bring summer to a close than with a sequel? Works for Hollywood. A long time ago I wrote the first post with this title and I’ve written about nature at other times, too. But the idea of a natural order of things plays such a strong role in this area that I think it is worth revisiting.

Here’s what I think is at work: It seems to me that for many people there is an assumption that there is a natural order to things that sets a default. The default requires no justification–it just is that way. However, any change from the default must be justified. In particular, what you see here a lot is the argument that the people who contribute DNA to the creation of a child are “naturally” the child’s parent. Thus, there’s no need to explain why this is a good system to adopt. However, any change from that–recognizing people who do not have DNA links–must be justified.

I think that argument is fundamentally flawed in several important ways. This is not because I am anti-science. I understand that DNA from two people is indeed required to create a child. I accept this as a scientific principle. But the topic here isn’t the science of human reproduction (though I do occasionally wander into that area). My topic is law, which is to say, legal rules.

Failing to appreciate the difference between science and law is, in my view, the most fundamental error in the argument I’ve noted above. Legal rules are constructed by people. They are not like gravity or biology or other scientific matters. I accept that scientific principles are just out there, waiting to be discovered. I don’t think law is like that. Law is created by humans.

You can start with your scientific principles about reproduction and I think we’ll all agree. There are two people who have that genetic link. My question is what legal meaning do we give that link? And (perhaps this is the most crucial point) there is no default answer. Instead, there are a range of possible answers. All of them need to be considered. Any choice among them must be explained and justified. Thus, the position that the people who provided the DNA should automatically be considered legal parents is one that has to be considered, explain and justified. If you want to pick that option, you need to tell me why it is a good idea to do so.

In my experience, those who propose DNA as the defining aspect of legal parentage usually skip the justification step–and I think that’s because it doesn’t seem necessary to them. For them it is the default and therefore doesn’t require justification. If they do offer justification it’s usually something akin to “because that’s the way it is” which isn’t really a justification in my book. It’s just restating the assumption. Conversations tend to break down here because we are working on such different frameworks.

The idea that law isn’t socially constructed but rather just exists out there–including the specific part that there are people who are just automatically and by default “parents”–is sometimes called “natural law” perspective. It’s a legitimate perspective–I don’t mean to suggest that it is not. And I will confess that there is much in natural law that I find appealing. (There are some things I think are just wrong–unjustified killing perhaps–and that’s sort of a natural law thing to say.) Here’s the tricky bit, though. If natural law is just out there, where did it come from?

There’s an easy answer for some people–God. Sometimes you see this explicitly. (I’m thinking here about arguments against access to marriage for same-sex couples that talk about how God created men and women and decreed how reproduction happens–“complementarity” is a word that is used.) Sometimes I think it is in the background. If this answer works for you, then I think you’re done. But it doesn’t satisfy me–for reasons which I won’t go into here.

If not God then where does natural law come from? I guess you can say “nature”–the same place that laws like gravity and entropy come from. But this, too, seems unsatisfactory to me. After all, gravity is a universal law–it appears to operate over time and space. Rules about parentage aren’t and don’t. Nor do they operate across species. Some animals care for their genetically related young but many do not, or seem largely indifferent to the genetics.

Often as I’m reading comments here–and obviously I’m thinking of the comments of those who disagree with me–I try to figure out where the main points of disagreement are. I think about the underlying assumptions of the authors and about the frameworks in which they operate. Much of the time the key difference seems to come back to this natural law question. I figured it was worth coming back to to set it out on its own again.

10 responses to “Back to Nature, 2”

“In particular, what you see here a lot is the argument that the people who contribute DNA to the creation of a child are “naturally” the child’s parent. Thus, there’s no need to explain why this is a good system to adopt. ”

This sentence acts as if there is no such system in place, leaving the question of which system to “adopt” out of a vaccuum. However the premise is incorrect; there is already a system in place. One must therefore have a very good reason in order to dismantle it.

To be sure, the system has some areas to it that are not black and white. Advocates of alternate families point to the grey areas as if that means the system doesn’t exist, but that’s incorrect.

I’m not exactly sure what you mean, but I’m pretty confident I disagree. There’s no general “DNA defines parenthood” system in place and there never has been. There are times when DNA is invoked–particularly when the state has an interest in ensuring someone pays child support. And of course, different times/places have used different variants of different systems or combinations of them. But to the extent that your assertion “there is already a system in place” is intended to refer to DNA based parenthood, it’s just not so. Sometimes DNA establishes parenthood and sometimes it does not.

??????? You’re kidding, right?
Do you mean to deny that the DEFAULT parent in almost every society has always been the assumed biological progenitor?
I don’t mean each and every individual case, where there are extenuating circumstances or a religoius/ class authority with a political axe to grind.
(And even in THOSE case, people recognized themselves as kin- even when the law didn’t.) Even today, with ART, adoption, and all, Mother and FAtehr, son, and dauthger are still assumed to be biologically based unless specified otherwise. I don’t know how you can deny that. That is and always has been the default, and deviation from the default often tends to involve some emotional readjusting to the people involved.

My argument is therefore not an argument from nature but an argument against dismantling and experimenting with the social structures that currently exist, simply to cater to the wishes of a special interest groups. It is possible to change social structure, but it is not possible to do so without creating chaos, upheaval, and adversely affecting a significant percentage of the members of the first few transitional generations. And all for what?

I’d make the same point I made above–I think you’re mistaken about existing social structures. In nearly all states, a husband is the legal father of his wife’s child–that’s not DNA. Nor is that catering to a special interest group.

Legal parenthood HAS ALWAYS been constructed–sort of by definition. What I mean is there have always been some set of legal rules about who is recognized as a parent and who is not. Those rules are made by society to suit a whole range of interests. They have changed over time. There’s no “orginal set” we should respect. Remember that once a child born to an unmarried woman had NO parents?

Perhaps it is true that one should always hesitate before making change, but recognize that the status quo isn’t DNA based parenthood but a motley patchwork of things that has been in flux for centuries.

The most important role of law is to turn a moral responsibility into a legal one. A moral responsibility is not invented, it is based on the fact that our actions have consequences for other people.

Julie, you use the expression “genetic link”, but between parents and child it is more than a genetic link, it is a causal genetic link. The Parents have created the child and has a moral responsibility for this act. Few societies can afford not to turn such an important moral responsibility into a legal one.

I think your first statement–about the role of law–is a really interesting one. I have to think about that. But if nothing else, it makes me wonder about where moral responsiblities come from. I think here to one often might end up with some version of religion–at least as I think about it, most religions include codes of morality. (I’m not saying this is a bad thing.)

In any event, I’m not sure refocussing on morality is going to resolve much. If two women decide to raise a child together, with the plan being that one will get pregnant and give birth but that they’ll raise the child together, I would say that the person becoming pregnant is morally obliged to keep to the agreement and so I’d say law should enforce that. Nothing to do with DNA, but something to do with being bound by one’s word. Perhaps that is my own idiosyncratic view of morality. All I really mean to suggest is that I don’t think it’s going to get us easier answers.

By ‘moral responsibility’ I mean that our actions have consequences that we can’t argue away. It arises whenever we have a choice of action. I use it in its philosophical, not in its cultural sense. Religion and law are cultural superstructures which attempt to interpret moral responsibility and more or less successfully turn them into rules. Some anthropologists have speculated that the universality of religion among humans has developed to serve such a social purpose (this is not the same as to say that religion is superstition!).

Is a promise an action which creates moral responsibility? Sometimes, but it depends on circumstances. People make a lot of promises which they don’t keep because circumstances have changed since they made the promise ( f.ex. ’till death do us part’).

You can’t ‘undo’ having created a child and the moral responsibility will always stay with you, but you can undo a partnership where there is a child. How much did you, as the non-biological parent, contribute to the decision to create the child? how much did this decision depend on the partnership?

I’d be surprised if I ever invoked God or morals or mother nature. I did use to talk alot about ethics and emotional trauma but I cut that out for you. So here is why:

If people don’t raise their own damn kids and society has to step in and do it for them, with everything else that’s going on in the world, people are gonna get pissed. There is a very practical reason why we expect people who reproduce to raise the children they produce and that is that generally nobody else is lined up to do it for them, nor should they be. Everybody has genetic parents that reproduced to create them so we default to the genetic parent, not because we think that they will be good at it but because they created the burden and must themselves attempt to bear it before making the child someone else’s problem to raise. Baring accidental death or dismemberment, there is no reason why the people who reproduced to create a kid can’t show up on time, take care of their kids and punch out in 18 years. No reason at all. It does not matter if they are poor it’s easier for society to supplement parental income than it is to take the children away and try and find new homes for them. Imagine if we had to do that each time each time a minimum wage earner reproduced, it would be a bureaucratic nightmare. Sure society would love to be absolutely sure that people would do a good job of raising their children before recognizing them as legal parents, but the reality is we don’t have the resources to make that happen.

So as a practical matter, society does not need to know that the default parents will be good at raising children; we just need to not know that they are going to be bad ones. What that means is the State will not mess with the obligations of a default parent unless they are made aware of parental actions that place the child in eminent danger. An example would be that pregnant women are routinely tested for narcotic drug use and the State will take a woman’s child into custody if she gives birth dirty in a hospital. They will still record her as the default parent but they start considering other alternative people to raise the child to adulthood.

DNA, Pregnancy and Childbirth are all equally poor indicators of a person’s ability to safely raise a child to adulthood; CPS is filled with cases of children abused by the women who gave birth to them or by other genetic relatives. While I’m at it being the spouse of a birth or genetic parent is equally useless as proof that a person will take good care of a child. Being pregnant is nothing like caring for a child, I’ve been pregnant and I’ve raised a child. Currently we determine the default parents with an inconsistent application of logic that looks more like property distribution than family law. The woman who gives birth is named Mother not because she performed child care duties while pregnant as you have suggested, but because she the assumption is that she reproduced to create the child so the burden of caregiving falls by default to her. If a woman is married her husband shares equally in whatever her financial burdens are. So just as if she’d inherited property, the child becomes their joint property and the husband has 50% responsibility for the child or property. This particular process is only fair if the husband and wife are the ones that reproduced to create the child. If they are not the people who reproduced to create the child, the burden is being placed on the wrong people and there may in fact be graft or corruption to uncover but it’s all too difficult to detect the way the law operates currently – it’s just too easy to lie and get away with it.

Your right Julie it is the relationship that counts when it comes to being a good parent. But you should not establish that relationship covertly at the expense of child welfare in general which is greatly benefited by identifying the genetic parents and making sure that everything is copasetic if they are going to relinquish their biological child to someone else to be raised.

This selling gamete business is really irresponsible behavior on the part of the individuals reproducing. They are clearly not grasping the multitudes of children one individual can produce and that they are personally shirking their responsibility for monitoring the health safety and welfare of those children. As an example they reproduce in a vacuum unable to make sound decisions based on the results like the health of each child at birth. If the person reproducing has genetic trait that causes their offspring problems they will never know it and they’ll be doomed to continue creating children that need special care. Instead of creating a small number of handicapped children that they themselves will care for, they may create 20 or 30 others to struggle and care for. Its reckless and they need to reel in their behavior. The big corporations like zypex won’t be ethical for them, they are going to have to start considering the long view themselves.

You know a genetic parent did not purchase the child or the parental rights from anyone because its generally their burden to begin with. The moment someone who is not the genetic parent wants to raise that child we need to be diligent in making sure that no money was paid, that nobody was cooreced blackmailed bribed etc. We need to make sure nobody else is making an unreasonable profit such that the transaction smacks of child selling or parental rights selling. We really do need to identify who is reproducing for the safety of children. Does not mean they need to be raised by them. I hope you see that I understand DNA does not mean someone will be a great parent. No matter how many times I say it it seems I might as well have said nothing at all.

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About the Blog

Family law is shaped by and helps shape our worlds. It changes all the time, propelled by the diversity of our families and our experiences. It matters (and should matter) to many of us. Whether or not we think about the law, we are subject to it. That's why I started this blog.

Many topics in family law fascinate me. I hope to create a forum for intelligent and sustained discussion of some of the more compelling family law issues. I have started here with questions of parentage--who are the parents of a child. It's not as simple as it seems. But it is a terribly important one. By building slowly, case by case, story by story, I hope to slowly develop a rich and layered understanding of what it means to be a parent, one that perhaps, some day, the law can learn from.

My hope is that many of you will join me in the project and that the whole will be greater than the sum of the parts.